Saddam Hussein must not die

I don't imagine anyone was deeply shocked that Saddam Hussein was found guilty of crimes against humanity yesterday. The massacre of 148 Shiiite villagers was an act of barbarism amid many others. And if you have a death penalty, which Iraq does (both officially and thanks to the nation's ever-worsening insurgency) it's hard to think of someone more deserving of it. But, for reasons both moral and pragmatic, it's a bad idea. Saddam should be left to moulder in jail, where he can keep on raving about being the rightful President of Iraq until he dies a humbled and broken man.

Here's why.

1) It'll make the security situation worse.

In its report of the judgment, this newspaper noted that threats are already being issued by Saddam's supporters:

Saddam's fellow Sunnis in his home town, Tikrit, paraded through the streets chanting: "We will avenge you, Saddam."

In Sadr City, the Shiite stronghold of north-east Baghdad, youths took to the streets dancing and singing, despite the curfew. 'Execute Saddam," they chanted. Many carried posters of the radical anti-American cleric Moqtada al-Sadr, whose Mahdi Army militia in effect runs the district.

And this really highlights the abject failure of the whole campaign in Iraq. It isn't yet time to be taking stock of the Saddam regime. You can't have a proper, fair trial when the country's so divided. Despite George Bush's "Mission Accomplished" sign, the war simply isn't over. All that executing Saddam will do is stir up more civil strife, and result in the deaths of even more innocent people. Saddam killed more than enough of them during his life without more dying to mark his death as well.

2) It'll make Saddam a martyr. Saddam still has supporters in Iraq's Sunni community, and that's not hugely surprising – when he was in power, their minority population ruled the roost. Now, they will presumably always be outvoted by the Shiites. And in that context, this death penalty will be seen by many as an act of Shiite vengeance, not justice on behalf of all the people of Iraq. And that's why moderation is important. It'd be less inflammatory for Saddam to die like Slobodan Milosevic – of natural causes, cowed and humiliated by a judicial process that ultimately ensured he never saw the light of day.

3) The court has also awarded a death sentence to itself. Numerous judges and lawyers involved in the process have already been slain, and so have their relatives. If Saddam's hanged, you can bet that Saddam's supporters will ensure that those involved pay a heavy penalty. Sure, you shouldn't let terrorism disrupt a judicial process, and the judges involved have been extraordinarily brave, given the disastrous security situation. But it will be truly tragic when every single judge and lawyer is inevitably assassinated for that bravery. Iraq's going to need a lot of talented jurists in the years to come.

4) The trial's fairness is dubious. It's problematic to try a political enemy – especially for using an unfair court to condemn people to death, ironically! – in a court that is itself perceived as unfair. Paul McGeogh notes that groups including Human Rights Watch, Amnesty and several UN bodies have challenged the tribunal's credibility, and there have been clear instances of political interference – the last judge was sacked by the government for claiming Saddam was not a dictator. This is why isn't a particularly sensible idea for dictators to be tried by their victims, who can be so determined to attain a conviction that they skimp on procedure.

The trial should have been conducted out of Iraq, with independent judges. But the Americans refused to involve legitimate international organisations at any point before this, so it's not hugely surprising they wouldn't send Saddam to the ICC. Even though doing so would have prevented many of the problems currently being faced – McGeogh gives numerous instances of the court descending into farce. And there is a precedent in the case of former Liberian dictator Charles Taylor, which is being heard in The Hague because of security concerns.

5) The new regime is squandering a chance to prove it's better than the old one. Saddam's infamy results primarily from his habit of putting people to death unjustifiably, of course. But there's an uncomfortable parallel between Saddam's courts handing out death sentences to these 148 Shiites and the Shiite judge of this trial handing out a death sentence to Saddam Hussein.
Sure, the 148 victims were innocent, and Saddam clearly isn't. But surely it would be good if the new Iraq was a place where courts primarily representing one ethnic group no longer put members of the other major ethnic group to death.

6) The death penalty is just wrong. This is one of those extreme hypotheticals that really tests your beliefs. Lots of people are against the death penalty, but would make an exception for, say, Osama bin Laden – John Howard's in that category – or Hitler. Saddam is in the same category of villains, making this an interesting moral question. But I would argue that putting Saddam to death, while less tragic, is just as barbaric as in the case of Van Nguyen. If you're against the death penalty – and most Australians are – then that should be an absolute. Drawing a line between legitimate and illegitimate judicial killings is so thorny and subjective that it's a highly dangerous exercise. Who gets to decide, and how the decision is made, will be highly inconsistent.

When it exercises justice, the state should do so in such a way that emphasises its moral superiority to the criminal. But by killing Saddam, we are doing the same thing to him that he has done to others – death sentences for murder are only situation in law where the punishment 'fits' the crime. Death sentences are a relic of more bloodthirsty times, where crowds of people gathered in squares to watch people being put to death. We should be better than that, more civilised than that; and there's no more important time to demonstrate it than when dealing with a man who has displayed no civilised instincts whatsoever. By killing him, we adopt his own favourite punishment, and undermine our own moral authority.

The Baghdad court is showing the flaws inherent when justice is administered by the victors. But penalising crimes against humanity is the time when courts, and victors, should show their own greatest humanity. And that is why South Africa's Truth and Reconciliation Commission will go down as an admirable example of how to build a new society by engaging honestly and evenly with the past, and Saddam Hussein's tribunal will ultimately be seen, like so much else in "Free" Iraq, as a mistake.

Dominic Knight